Under Section 43D(5) of the UA(P) Act, bail is to be denied where prima facie evidence substantiates serious accusations of terrorism, while less compelling evidence may warrant bail.

JUDGMENT :

A.K. Jayasankaran Nambiar, J.

The appellants before us impugn the orders passed by the Special Court for the Trial of NIA Cases, Ernakulam, in S.C.No.02/2023/NIA/KOC, that denied them bail under Section 439 of the Code of Criminal Procedure, by relying on the provisions of Section 43D (5) of the Unlawful Activities (Prevention) Act, 1967 [hereinafter referred to as the “UA (P) Act”].

Background facts:

3. In connection with the murder of an RSS worker Srinivasan, at Melamuri Junction in Palakkad Town in Kerala, on 16.04.2022, allegedly by members of the Popular Front of India [PFI] cadres, an FIR No.318/2022 dated 16.04.2022 was registered at Palakkad Town South Police Station under Sections 120B, 34, 118, 119, 109, 115, 143, 144, 147, 148, 449, 341, 201, 212, 302 read with 149 of the INDIAN PENAL CODE and Section 3 (a)(b)(d) read with 7 of the Religious Institutions (Prevention of Misuse) Act, 1988. Pursuant to the investigation conducted in the said case, 51 persons were arraigned as accused by the State and 44 among them were arrested. One among those arrested died and 7 of the accused persons could not be arrested because they were absconding. The Investigation Officer of the Town South Police Station, Palakkad filed charge sheets against 44 accused in two phases before the Judicial First Class Magistrate Court -III, Palakkad. The charge sheet against 26 accused was filed on 13.07.2022 and the charge sheet against the remaining 18 accused was filed on 12.12.2022. The case was committed to the Sessions Court Palakkad and numbered as S.C.No.982 of 2022. Insofar as the absconding accused were concerned, the case was kept pending before the JFMC-III, Palakkad as C.P.No.41/2022 and C.P.No.61/2022.

4. While so, based on information received by the Central Government that the office bearers and cadres of PFI and its affiliates in Kerala have conspired to instigate communal violence and radicalise its cadres to commit terrorist acts in the State of Kerala and various other parts of the country, the National Investigation Agency [NIA] was directed by an order dated 16.09.2022 passed under Section 6 (5) read with Section 8 of the National Investigation Agency Act, 2008 to take up and investigate the case against the accused mentioned in the said order. Immediately, thereafter an FIR No.RC-02/2022/NIA/KOC dated 19.09.2022 was registered at the NIA Police Station, Kochi against the same accused, under Sections 120B and 153A of the IPC read with Sections 13 , 18, 18B, 38 and 39 of the UA (P) Act, 1967. The individual accused aforementioned were thereafter arrested on 26.09.2022. Two days later, on 28.09.2022, the Central Government declared PFI as an unlawful Association.

5. On 14.12.2022, a report was submitted before the Special Court in Crime No.RC 02/2022/NIA/KOC for extending the period of judicial custody of the accused mentioned therein beyond 90 days and upto 180 days. Shortly thereafter, by an order dated 19.12.2022, the Central Government, in continuation of its order dated 16.09.2022, and placing reliance on a report dated 13.12.2022 of the NIA that stated that FIR No.318/2022 dated 16.04.2022 registered at Palakkad Town South Police Station relating to the murder of RSS worker Srinivasan by PFI cadres at Palakkad on 16.04.2022 is a connected offence with RC-02/2022/NIA/KOC of the NIA, opined that since it appeared from both the aforementioned cases that there is a larger conspiracy hatched by the leaders of PFI whose involvement is noticed by the presence of senior leaders in Palakkad on the day of the murder of Srinivasan, where the conspiracy was hatched, the FIR No.318/2022, which has grave national and international ramifications needed to be thoroughly investigated to unearth the wider conspiracy and t